Irish Employment Legislation Updates and Guidance

 

Employers - Did you know that, as of today May 1st, 2014, New Legislation on the Use of Mobile Phones While Driving will be effective?

The amendment to the existing legislation governing phone use while driving, which was signed by Leo Varadkar, Minister for Transport, on 11^th April, 2014, makes it an offence for an individual to "hold” a mobile phone while driving a mechanically propelled vehicle in a public place.

Holding the mobile device includes supporting or “cradling” it with any part of your body (not just your hand) e.g. between the neck and shoulder. It is not a requisite that a person is actually engaged in a conversation on the phone. Similarly a person sending or even reading a text message (including SMS/MMS), or accessing information via the internet/e-mails etc. is committing an offence if "holding” the device as outlined above.

Sending or reading a text, in this instance, does not include anything done without touching the mobile phone or through voice activation.

The offence is punishable on conviction with a fine of up to €1,000 (first offence). The fine could reach €2,000 for a second offence. Three offences within 12 months could see a motorist face a 3 month jail term in addition to a fine. This is in addition to penalty points.

Close to 10,000 people were detected holding a mobile while driving in the Republic of Ireland between the beginning of January and the end of March 2014.

Assistant Garda Commissioner, John Twomey, communicated the staggering statistic that a motorist is four times more likely to have a collision when using a mobile phone.

Employers should issue employees with a notice detailing the important new regulations so that they are aware of their responsibilities. This notice should also serve to inform the employees that the Company will not cover the cost of road traffic offences including fines received under the penalty points system. Your notice should let employees know that these costs will be borne by the employee regardless of whether the vehicle was being driven for private or business use at the time the offences occurred.

We have prepared a sample Notice to Employees to help you to explain the new legislation – this can be downloaded by clicking the below image.

We hope you find it helpful!

As  I am sure you are aware, World Cup 2014 is starting today and we want to ensure that you are prepared as an employer, in the event that employee issues arise as a result of this tournament, particularly attendance at work during games and on the day following games.

The World Cup is commencing today, 12th June, and runs until 13th July. Employees should have requested this time off by now or in the coming days if they wish to take annual leave during this time for matches.

The main issues that could arise as a result of World Cup 2014, for employers, is that employees will be seeking additional time off either as annual leave or unscheduled time off. Unauthorised absence/increased sick leave may also be an issue for employers. Most games will be in the evening time - those employers who have evening/night shifts will need to be particularly prepared and pre-empt absence.

You as an employer, will first need to establish what your policy is to be during this period. Once you have decided the stance you wish to take with employees during this period, you will need to ensure this policy is clearly outlined to employees in the coming days to ensure they are clear about what is expected of them.

 

In deciding what you want to enforce for employees, you should pay attention to the following:

• Inform employees that, if they wish to take time off, they must apply for annual leave immediately - and let them know that it will be on a first come, first served basis. 

• Perhaps give staff the opportunity to swap shifts with colleagues who may not be interested in the matches - ensure all shifts are adequately covered.

• Be mindful of your employees who are not football lovers and do not want to take any time off during these games. Ensure there is fair treatment between all staff and ensure football fans are not getting special treatment and additional time off over those who do not follow the game.

• Make it clear that all employees are expected to be in work as normal, unless they have requested time off etc., during World Cup 2014. Outline that you expect productivity and attendance etc., to remain as it is currently.

• You could outline that for any absences during this time (within reason), due to illness; employees are required to provide a medical certificate upon their return.

• Employees may also arrive to work still under the influence of alcohol. If this is discovered, you need to act fast. Send the employee to the company doctor immediately to be checked by the doctor to establish if the employee is under the influence of alcohol. If the employee is found to be under the influence he/she should be sent home.  It may be time to engage a disciplinary process with the employee at this stage.

• If applicable, you may consider screening the games in house as a goodwill gesture to employees.  

  • Be mindful if there are a number of matches on, you will need to allow employees have their say on which match is shown..

• Employees may attempt to stream matches online on work computers, the company’s internet usage policy should be outlined to employees and the company’s expectations also outlined to employees here.

The key to avoiding any issues during World Cup 2014 is to make sure you clearly outline to staff (in advance), what is expected of them and that absences etc., will not be tolerated.

The above advice is courtesy of Lorraine Byrne, Senior Account Manager at The HR Company.

A dispute arose recently between HSE South – Waterford Regional Hospital and UNITE Trade Union over the payment of a “Twilight Hours” premium.

The evening shift for 22 Catering Attendants employed by the HSE in Waterford Regional Hospital was Outsourced to Agency Workers and, resulting from this, as of the 28^th April 2013, the Twilight Hours premium ceased to be paid.

Management’s opinion was that it was unreasonable to expect payment for a shift that was no longer worked by the Catering Attendants, however, UNITE argued that, in accordance with Section 8: Service Delivery Options of the Public Service Agreement (PSA), their members should continue to receive the payment.

As the dispute could not be resolved at local level, it became the subject of a Conciliation Conference under the auspices of the Labour Relations Commission. Agreement was not reached at this stage and, on 18^th June 2013, the case was referred to the Labour Court in accordance with Section 26(1) of the Industrial Relations Act, 1990.

 

A Labour Court Hearing took place on 15^th April, 2014 where UNITE argued that the workers suffered reduced wages due to the outsourcing of the evening shift even though the PSA stated that such procurement would not result in a worsening of pay rates for employees.

The Union also argued that the payment should have continued on a personal-to-holder basis or, at the very least, compensation, calculated on the actual loss over a 12 month period beginning on the 29^th April 2013, should be paid as per the PSA.

The HSE argued that it was forced to consider outsourcing as an option because the level of Catering Staff had diminished considerably and there was no alternative to this. The Employer argued that the decision was not taken lightly and its view was that the move did not worsen rates of pay as the “Twilight Hours” payment was a premium payment and the basic pay for the Catering Employees was not affected by the HSE’s decision to outsource the evening shift.

 

Management’s view was that the Haddington Road Agreement took precedence over the PSA and that compensation for loss of earnings should be paid to the employees for the 2 months from 29^th April (when the payment ceased) to 1^st July 2013, rather than 12 months as argued by UNITE.

The Court noted that the premium was no longer paid because the hours were no longer worked due to the decision to outsource. The loss was calculated as €1,430.00 per annum per Claimant and, after considering the submissions of both parties, the Court recommended that the issue be dealt with via the compensation formula provided for under the terms of the PSA 2010-2014. This meant that 50% of the identified loss should be paid with effect from 29^th April with the remaining 50% payable 6 months later.

The Data Protection Acts state that personal information held by a data controller (the Company/Organisation) should only be retained for as long as necessary for the purpose(s) for which the data was obtained.  If the personal information is no longer needed, the data should be disposed of in a secure manner or deleted.

 

However, as the Data Protection Acts do not specify what the different retention periods are for the various types of data, companies are required to pay attention to the statutory obligations imposed on them through Employment Legislation when determining the relevant retention periods.

According to the Organisation of Working Time Act 1997, employers are required to keep several records in relation to employees’ leave and rest periods – Employers are obliged to record and keep details of Annual Leave, Public Holidays, Carer’s Leave, the hours worked by each employee each day as well as detailed records of start and finish times.

There are various requirements in terms of timeframes for the retention of these records, for instance;

• Annual Leave and Public Holiday records must be kept for 3 years

• Carer’s Leave records must be retained for 8 years

• Similarly, Parental Leave records and Force Majeure Leave records must be kept for 8 years

While there is no set period for the maintenance of Maternity or Adoptive Leave records, employers should ensure that they hold on to these details for a period not less than 12 months in the event that a dispute arises leading to a case – the time limit varies from 6 months to 12 months (in exceptional circumstances).

 

If, as an employer, you do not record employee working hours electronically (via a clock-in/clock-out system) you are required to complete a special form (an OWT1 form or a form not dissimilar to this) on a daily/weekly basis.

In relation to retaining hardcopy documents, it would be best to keep any original, signed documents on file as per the timeframes outlines above.

The key here is to ensure that the documents are available in the event that an inspection is announced. The records must be presented in a format that an inspector could easily understand.

Employers who fail to keep records as outlined above are liable, on summary conviction, to pay a fine of up to €1,900.

 

As an employer, you must be able to prove that you have informed each worker of his or her rights to rest/breaks. You must also be able to show that you have informed each worker that untaken breaks must be reported to you as the employer (or a representative of yours e.g. a manager).

If an employee claims that he or she was unable to take a break during work then the employer is obliged to look at the reasons for this. The employer is also responsible for looking at any health and safety issues that could have arisen as a result of this. As soon as is reasonably possible, the employer must allow the employee to take the rest period that was due to them. If the employee does not take the rest period at this stage then the matter is closed as the employer has fulfilled his or her duty by allowing the employee to take it.

Employers must even keep records on candidates who have aplied for positions within their company - even where the applicants have not been successful. The Data Commissioner considers a retention period of one full year to be appropriate in situations like this.